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DO FETAL RIGHTS LIMIT MOTHERS' RIGHTS?

This article appeared in the June 2002 issue of NCSL's magazine, State Legislatures, and includes information on fetal homicide. Click here for .pdf version. (charts available on the .pdf version)

The debate over fetal rights is not new to the legislative arena. Every year pro-life and pro-choice advocates vie for the upper hand in this contentious issue.

Recent debate focuses on fetuses killed by violent acts against pregnant women. The legal approaches to dealing with such attacks involve either civil action through wrongful death laws or by increasing criminal penalties when a crime involves a pregnant woman.

Such legal action focuses on the harm done to a pregnant woman and the subsequent loss of her pregnancy, but not on the rights of the fetus.

A more controversial approach to prosecuting an assault on a pregnant woman involves defining the fetus as a person under a fetal homicide or "feticide" law. Such legislation is hotly debated under names such as the Fetal Protection Act, the Preborn Victims of Violence Act or the Unborn Victim of Violence Act. Those supporting these acts, often pro-life advocates, say that both the lives of the pregnant woman and the fetus should be explicitly protected. They assert that fetal homicide laws justly criminalize these cases and provide an opportunity to protect unborn children and their mothers.

Those on the other side fear that laws to protect a fetus could infringe on a woman's right to choose an abortion. Pro-choice advocates say such laws grant a fetus legal status distinct from the pregnant woman-possibly creating an adversarial relationship between a woman and her baby. They are also concerned that the laws could be interpreted to apply to a woman's behavior during her pregnancy (e.g., smoking, drinking or using drugs). They prefer criminalizing an assault on a pregnant woman and recognizing only her as the victim.

Under feticide laws, nine states apply the crime to any stage of pregnancy, while others apply it only to later stages.

This session, at least 16 legislatures debated fetal homicide. Laws passed in Idaho, Nebraska and Utah.

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